In my last post, I listed ten things I learned or had reinforced in 2018 about making. One of the items listed was this:
“5. Inspiration comes from all over, if you let it. Okay, really, I knew this already, but it was confirmed time and again. Couldn’t you make an amazing quilt inspired by the mask above?”
This is the mask:
This evocative piece is from Burkina Faso, a country with an estimated 70 languages. Even so, with its geometric designs, it speaks the same language as patchwork quilts. It’s easy for me to imagine making a quilt inspired by it. But is it fair for a white woman from midwestern US to mimic symbolism from across the world? I don’t know.
In fact, that’s what this post is about: things I didn’t learn in 2018. Two of the most important things about making that I didn’t learn in 2018 have to do with ownership. Who owns the right to create certain objects, symbols, or designs? Answers to this question have to do with both law and ethics.
US COPYRIGHT LAW
Let’s start with copyright, and what I did and didn’t learn about it in 2018. If you’re not familiar with the term, see this definition of “copyright” from copyright.gov:
A form of protection provided by the laws of the United States for “original works of authorship”, including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. “Copyright” literally means the right to copy but has come to mean that body of exclusive rights granted by law to copyright owners for protection of their work. Copyright protection does not extend to any idea, procedure, process, system, title, principle, or discovery. Similarly, names, titles, short phrases, slogans, familiar symbols, mere variations of typographic ornamentation, lettering, coloring, and listings of contents or ingredients are not subject to copyright.
That might not make it a lot more clear, but in general, there is legal protection for the original author of some works. However, it doesn’t extend to every original creation. For example, recipes are not protected as they are considered lists of ingredients. That’s right! Legally, you can take any recipe you find anywhere, copy it and present it as your own.
Also things that are considered “useful articles” are not protected. For example, fashion (clothing) designs are not copyright-protected because clothing is considered utilitarian. That means as soon as a design is created, it legally can be used by others. However, if there is “any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object” it might be considered separable and protected. Pretty murky, huh?
So the stuff above? I learned that this year. What I didn’t learn a lot about is how this all applies to quilts. First, quilts that are useful objects (rather than obviously wall art) don’t have their quiltiness protected. However, there may be an original design that is separable and protected. Confusing, especially when you ask what constitutes originality.
It gets more confusing when designers and companies try to limit how consumers use their work, in ways that may or may not conform with the law. For example, if a quilt pattern designer claims legal limits on how many copies you may make of her design, can she legally do that? Does it make a difference if the claim is made in a way that the consumer must acknowledge before purchase, versus being placed within packaging so the consumer couldn’t see it before purchase?
What about fabric yardage that asserts it is for personal or consumer use only, not for commercial use. Is that enforceable?
A different scenario is if a Facebook group copies tutorials or patterns from other quilters and presents them without attribution. (This happened in 2017.) Is a tutorial like a recipe? Is a pattern just a set of instructions? The technique is not copyright protected, but what about the words? It’s confusing for me, partly because I made a big stink when someone else used the wording of one of my tutorials and didn’t provide attribution. She didn’t do the right thing, but was she legally in the wrong? I honestly don’t know anymore.
Another source of confusion comes from how to enforce intellectual property rights. In the US, there is more protection if a creator uses a copyright notice: “The copyright notice consists of three elements. They are the “c” in a circle (©), the year of first publication, and the name of the owner of copyright. A copyright notice is no longer legally required to secure copyright on works first published on or after March 1, 1989, but it does provide legal benefits.” I have a copyright notice in my right margin that follows this format.
If the creator registers their copyright, another layer of protection makes it easier to make a claim in a court of law. A registration is an “official paper denoting that a particular copyright has been registered with the Copyright Office. Provided the claim is registered within five years of the date on which the work is first published, the facts on a certificate of registration and the validity of the copyright are accepted by courts of law as self-evident unless later shown to be false.”
Even with a registered copyright, the creator must have the desire and the resources to pursue complaints within the legal system, including paying an attorney, developing appropriate evidence, and losing all the time needed to take it to court. Copyright is pretty crappy protection, in truth, unless you have good evidence and the monetary value of your loss is enough to make the legal pursuit worth it. Because there is a lot of subjectivity in application, and because the courts don’t have many cases to base new decisions on, quilting copyright law is very murky indeed.
I do hope to learn more about it in 2019.
Again, this might be a term that is new to you. Wikipedia offers the following: “Cultural appropriation, at times also phrased cultural misappropriation, is the adoption of elements of a minority culture by members of the dominant culture.” It specifically refers to use of those cultural elements when there is a power imbalance between two groups. In other words, a white person in America using symbolism from Native Americans might be guilty of cultural appropriation, whereas if the reverse happened, it probably wouldn’t be considered inappropriate or disrespectful use. If someone from the US uses Nordic graphics or designs, that probably wouldn’t be inappropriate, but using elements from eastern Africa might be.
A big example arose in the news this week. In 2003 Disney was granted a US trademark of the phrase “hakuna matata.” The trademark protects Disney’s use of the phrase on clothing and footwear. According to the Guardian,
The expression means “no problem” in Swahili, which is spoken across east Africa and is a national language of Kenya, Tanzania, Uganda, and the Democratic Republic of the Congo.
For most Westerners, their awareness of the expression came from the Disney movie The Lion King, released in 1994. The issue is brought to the fore again because Disney is releasing a new Lion King movie in 2019.
Is it disrespectful, or worse, for Disney to claim exclusive use and benefits from a phrase that is widely used in another part of the world? I would say “yes.”
The answers aren’t always clear cut. Check this post on cultural appropriation in the making of a toddler dress by Baby Gap. In 2010, the post’s author wrote about a dress sold by Baby Gap, which was designed in the form of 45° diamonds, as are used in 8-pointed star quilts. Plains Native American communities, especially Lakota/Dakota, have a history of making these quilts. They are not just a blanket or bed-covering, but are a symbol of celebration, and thus carry extra significance. This article from the Encyclopedia of the Great Plains says quilting was introduced to the Northern Plains Indians in the late 1800s by missionaries. “Quilts eventually replaced buffalo robes in the wrapping of the dead. Star quilts were, and are, given in celebration at births and to honor loved ones at graduations.”
But the style used in these quilts is very similar, and with the same type of construction, as quilts made in North America since at least the 1820s. The Star of Bethlehem (or Lone Star) quilt uses 45° parallelograms radiating from the center to create an eight-pointed star. Here is an especially beautiful version from around 1850. This photo is courtesy of the Museum of Fine Arts in Boston.
The baby dress is made from diamonds and doesn’t include star points. Aside from its patchwork, it doesn’t look like a quilt from colonial America or the Northern Plains. Claiming that its design is cultural appropriation is a stretch, at best. Fortunately, the post’s author agrees that it’s a good question to raise, but not something to get riled about.
This all brings me back to the questions raised at the top: Couldn’t you make an amazing quilt inspired by the mask above? And is it fair for a white woman from midwestern US to mimic symbolism from across the world? I think the answer to the first question is “yes,” and to the second is “no.” Because I know nothing about the origins, intention, or symbolism of the mask, I cannot treat it with the respect it deserves. While I may use the mask for inspiration, I will not choose to recreate it in fabric.
After all that, I’d say that cultural appropriation isn’t as simple to identify as obscenity, with the old “I know it when I see it” rule. To me it’s clear that Disney is engaged in cultural appropriation. But more generally where the lines are and who crosses them is harder to say. Another thing I didn’t learn in 2018
This was a really long post. If you made it this far, thank you as always for reading. I hope it’s provided a few things to think about. If you have comments or questions, I’d love for you to let us know.